‘The Law Has Always Been in the Favor of Law Enforcement’
Veteran Baltimore civil rights attorney A. Dwight Pettit responds to the acquittal of Edward Nero of all charges for the death of Freddie Gray
JAISAL NOOR, PRODUCER, TRNN:
Earlier, the Real News brought you reactions from outside Baltimore Courthouse that cleared Officer Edward Nero of all counts over the death of Freddie Gray. Now we bring you in-depth analysis with a veteran civil rights attorney.
Freddie Gray was a 25-year old Baltimore man who was arrested on April 12, 2015 after running from police in west baltimore. He died a week later, medical experts say, after suffering a fatal injury during his transportation in a police wagon. This sparked weeks of mass demonstrations that only tapered off after 6 officers were charged in his death.
Nero was one of three bike officers who took part in Gray’s arrest and was charged with four misdemeanors- Assault and misconduct in office charge because they alleged Nero took part in an unlawful arrest and then touched Gray without his consent. Nero was charged with reckless endangerment and the other misconduct charge for not seatbelting Gray in during a wagon stop where he was present.
We sat down with veteran Civil Rights attorney, author and Real News Board member A. Dwight Petit for his in-depth analysis of the legal theories behind the case. We started to by asking for his reaction to the verdict.
A. DWIGHT PETTIT: –A little disappointed but not surprised, especially as to the assault charges.
I thought it was going be very difficult to establish that, because police are always in the position to claim that they’re acting in good faith, and if they acted in good faith the main question that the nation and the state are looking to, and this is a first time prosecution, is to whether or not that can be overridden by criminal culpability.
Even if you get past the legal issues of probable cause and reasonable, articulable suspicion, and reasonableness of their actions, even if they do not have probable cause, do not have reasonable suspicion, do not have articulable suspicion, when they’re acting in good faith, can that raise the police action to criminal culpability? And I didn’t think a court would go that far. I’ve never seen a court go that far, but for that matter I haven’t seen the state go that far, to bring charges in that area.
NOOR: And so the assault charge is based on the idea that this was an unjustified, it was an arrest without probable cause.
PETTIT: Exactly. So you have several different standards that take place. First, when you have the issue of him being chased, that’s the first issue as to whether or not the chase was constitutionally correct, and the Supreme Court has said that it is. When you make eye contact in a neighborhood with high crime then it raises reasonable suspicion when a person goes to flight and you can chase them.
Now get to the second part, and he’s apprehended in this case, testimony is that he gives up, and so then Terry v. Ohio takes over. And Terry v. Ohio says police officers can pad him down for his own safety or what have you, for any weapons. But then after that stage happens you have to ask in this particular case, Judge Williams did not let an issue about the knife. Where is the probable cause for the arrest?
And so, I’ve never seen the probable cause for the arrest. If there is no probable cause for the arrest, then the arrest is bad, and the argument of the state is by putting him in touch with the handcuffs and bringing him down and what have you, then this amounts to an assault. [crosstalk] And–
NOOR: [interceding]–So there’s a few questions I wanted to ask you before you go any further. The first is, talk about the, you know, in the pretrial motions Judge Barry Williams suppressed the evidence of whether that knife is illegal or not. Talk about, what’s your response to that?
PETTIT: I don’t think he ever really got to it, because the state backed off of the knife. The state said, well, the knife is not going to be really relevant as to its legality or illegality because of the fact he’s apprehended before they search him. Their argument is that he is under arrest before the search, so the legality of the knife becomes a nullity, my understanding of the argument. So then you go from reasonable suspicion of the case, Terry as to the pat down, and then why is there the arrest?
You don’t even have to get to the knife, because before you do that you’ve already apprehended him. He’s already under arrest. That’s not, to put him on the ground and handcuff him is not a Terry pat down. That’s an arrest. That I believe to be the state’s argument. At that point in time this knife becomes irrelevant.
So then the question becomes, are the police acting in good faith? Well, as the state began to argue, well, you’ve got to look at each case under the circumstances of that particular case, but the argument is here, considering the testimony puts him at the [periphery] of everything. Then where is, even in this particular case, the circumstances of this case of Nero, where is the assault?
NOOR: Right, because–
PETTIT: –Because he’s protected by a good faith argument that he believes that the arrest is correct. Are you saying that the police officer has to go to a law book and say, okay, is this probable cause? Do I have reasonable suspicion? Do I have articulable suspicion? They’re not going to put that kind of burden on the police officer.
NOOR: That brings up the testimony of Garrett Miller, who was compelled to testify, and he backed the defense’s argument, and so the question is, why even call him? Why even call him as a witness? I mean, it seems like it’s a fair assumption that he’s going to side, you know, the defense, all these officers are coordinating their defense, and he’s got immunity, so why call him? Because he is, you can only assume he’s going to back [crosstalk] Nero–
And you haven’t had the chance to talk to him, you haven’t had the chance to know what his testimony is. It was almost an act of desperation, to some extent. Now, the opposite of that coin is, got to remember, this is only one trial out of six. Now, as I said earlier today, what they’re really playing at this point in time is the shell game. The shell game is whether you recollect or not which is the pea under.
And so, here you’ve got Miller, and everybody’s seeing Miller taking away, he said, I did this, I did that, Nero didn’t really do anything. Okay, well, what happens when it comes up to Miller’s trial? There’s only so many places that you can hide the pea under so many shells, so at some point in time, if you argue that this is one case, one battle and not the war, that might come back to haunt them.
But I have to agree with your scenario. Why call him in the first place? You already had his testimony. Anything else that you didn’t ask him or he wasn’t asked is his original investigatory testimony is going to be in favor of Nero, because they’re going to stay together.
NOOR: Freddie Gray was arrested without probable cause. Nero was part of that arrest.
NOOR: So, why isn’t he guilty of one of these charges, and why did they drop, for example, the forcible confinement charge, and why did they not charge him with conspiracy, which is something the judge asked the prosecution, why [crosstalk, inaud.]–
PETTIT: [interceding]–Right. Again, that’s a good question. Because then they could have tied in everything that Miller did and everything that Miller testified to. And you’re right. They seem to understand the deficiencies in the state’s position, in terms of false imprisonment, so they dropped that. But it’s almost the same argument that comes back for the assault. That’s why I never really understood the assault charge. I thought the assault charge, in this particular case, was the overreach.
NOOR: So, was their any legal basis of putting Freddie Gray in that wagon.
PETTIT: Well, now you’re getting to a whole other subject, because the officers who put him in the wagon, they’re basically following instructions. They’re following instructions from Rice, Nero and Miller. So, then you get into the issue then of whether it’s reasonable or whether they acted in a reasonable manner to not follow the orders in terms of seat belting him, and whether they were aware of the medical distress he was under, and especially with him articulating, I can’t breathe, et cetera, et cetera.
So, that gets to the reckless endangerment. Not the assault, the reckless endangerment, and the misconduct. Those are separate and apart, That’s why I thought that Judge Williams might find some culpability in the reckless endangerment particularly, and also the police misconduct charge.
NOOR: You mentioned, you know, the police witnesses. They testified that Nero wasn’t trained properly about the charges, so that was brought up, and his superior officers where there. The wagon driver was there [crosstalk] present on the scene.
PETTIT: [interceding]–Well, that goes back to shifting the pea again, in terms of the shell game. They’re going to shift, at this point in time they shift everything to Goodson, because Goodson is the driver. He’s got the heavier charges, the second degree murder, possibly. I’m not sure whether it’s a manslaughter or not, but I think he has [crosstalk] the depraved heart.
NOOR: [interceding]–The depraved heart, yeah.
PETTIT: And so, everybody at this point in time, Miller as well as Nero, even though he didn’t testify, everybody’s unloading because some of the testimony was somebody else that got in the van, and so they’re saying it was somebody else’s responsible. Well, you can only push that pea so far. At some point in time they’ve still got Goodson coming up for trial, so I guess they’re going to attempt to unload on Goodson in terms of the reckless endangerment.
NOOR: [inaud.] Ask you about is the significance of this prosecution, the fact that this has never been done before. So, can you explain that and why it’s significant and, you know, did the prosecution jumble an opportunity to really set a precedent and stop some of these unlawful arrests that are happening across Baltimore?
PETTIT: Well, I think it has national implications, because it’s the first time that I can recall that an officer or officers are prosecuted for a bad arrest. We do it in civil law all the time. Constitutional claims always include false imprisonment, false arrest, et cetera, et cetera, but never has criminal culpability attached, because that’s usually too far of a stretch because that’s usually met by the good faith argument, as I’ve said before.
So how do you get to raise the criminal culpability to beyond a reasonable doubt, which is the criminal standard, when you have an officer saying, hey, I’m acting under the heat of the moment and I am, in fact, acting in good faith that I believed I was making a proper arrest because I believed there was probable cause and reasonable suspicion. That’s a hell of a burden to overcome. You might overcome it in civil court where the standard is preponderance of the evidence, but how do you overcome that in terms of beyond a reasonable doubt, which is the criminal standard? Whole different ball game.
NOOR: Because, if the police can just snatch up and arrest people, you know, without reasonable cause, that’s, you’re fundamentally eroding a primary [crosstalk, inaud.]–
PETTIT: [interceding]–Right, but that’s when the state goes back and says, when you get to that level of putting criminality in terms of the arrest conduct, then you have to look at each case as a separate entity, and then you begin to look at, what did Nero do, or what actions did he take that would raise criminal culpability, even though assault is not a specific intent crime. [crosstalk] This one is called general intent.
NOOR: [interceding] So, can you explain that for the layman?
PETTIT: In other words, specific intent requires you to intend the consequences of your actions. It’s specific intent to assault somebody, hurt somebody, et cetera, et cetera. General intent, it’s implied in the action in itself. You don’t have to prove specific intent, but you’ve got to prove some elements which either create some type of gross negligence, which goes to criminality, or some type of general intent to do harm or the gross negligence to not consider your actions in terms of, the reasonableness of your action in terms of the harm it’s inflicting on somebody else.
And so, when you move from the civil to the criminal it raises the whole different standard, but that was why the nation and FOPs nationally and FOPs locally and so forth were looking at this case, because it’s the first in Maryland but it might be one of the first in the nation where a prosecutor has tried to go that far. And remember, it’s been difficult enough for a prosecutor to even charge criminally, much less to charge criminal violation for making an arrest where the officer believes or believed that he had probable cause.
NOOR: Talk about why that’s important. Why is it important that a prosecutor finally, especially in a place like Baltimore where only a third of arrests end up with charges? Why is it significant?
PETTIT: Well, I think it sends a, even though the prosecution on this one case, and we shouldn’t use this one case as a blanket for everything, but in this one case, by the prosecution going forward I think delivers a message to the police departments that there, it will be some accountability. There is going to be some accountability. There is the potential of some sanction if you just act boldly and arrogantly in defiance of the rights of the victim, the person being arrested.
In this instance, what the court is saying, that conduct of Nero didn’t rise to that level by the factual testimony that he listened to, for criminal culpability. But now that tells the police department, the message that should be sent is that we do have a prosecutor in Baltimore City who will look at you and see if your actions were reasonable, whether you, for example, knowingly knew you didn’t have probable cause, knew you didn’t have reasonable suspicion, and you go ahead and continue to arrest somebody, say, in a much more violent manner, in a much more comprehensive manner than Nero’s relationship to Gray.
NOOR: So, can an officer use, so you’re saying this will likely change the behavior of police officers.
PETTIT: I think it makes them all very, very apprehensive, to a certain extent, of the fact that they’re just not totally immune to the rights of the individual citizen, that you do have some body of law and thought and prosecutor that will look at your actions to see whether or not you acted reasonably under the circumstances, that you, in good faith, could believe that you had probable cause or, in bad faith, you knew you did not have probable cause and then acted. That might raise it to criminal culpability.
NOOR: How could this impact the other five cases, the other five officers that are being tried right now?
PETTIT: Well, I think has impact in terms of strengthening the defense theory that all of these things were overcharged because of the social conditions and what was happening in Baltimore City, but I also think it allows the prosecutor or the prosecution to step back and make some very, very intelligent decisions as to where they went wrong and how they can fortify their cases, and especially how they can move, in terms of what the court of appeals has now said is going to be dangerous grounds, in terms of the immunized testimony.
NOOR: Could this backfire for other, you know, for civil rights advocates? In their view, if all these officers are found not guilty or the majority of them are found not guilty, could this embolden police in a way, because they–
PETTIT: Well, let me put it to you like this. This is nothing new. The police have been protected by the legal system for years, and we find that in, if you look across the board in terms of other jurisdictions, that’s why I said it was a smart decision [to] take a judge, because the judge wasn’t going to be controlled by motion. The judge was going to be controlled by the law. But if you look at the judges across the country, when there have been judge trials they’ve sided with the police.
But you have to realize, that’s because the law, coming all the way down from the Supreme Court, right down to the states and right down to the local courts, are very, very conservative in terms of the police. And very much the law has evolved very much in favor of the police. And so, persons like myself who have been doing police brutality cases for years, we are very aware that there is a high risk of nonsuccess simply because it’s the police, where people tend to give the police more credit for veracity and truthfulness.
People, the citizens want to believe the police. The law is in the favor of the police, and so if you get a judge in these particular cases the judge is going to strictly adhere to the law, so the prosecution of the police, whether it’s civil or whether it’s criminal is an uphill battle. So that’s not, that hasn’t changed.
You can look across the country at all the acquittals, and my goodness, people talk about the cases I’ve won in civil court. They don’t have no idea the cases that I’ve lost in civil court, because the Supreme Court and the Court of Appeals of Maryland says you can’t second guess the police. You can’t Monday morning quarterback. You can’t put into evidence what alternatives the police had, and we haven’t even talked about the main defense of the police: I was in fear of my life and bodily injury. That always works.
When they shoot somebody, I’ve had cases when people have been shot in the back, no weapons, no nothing, and police said, I was in fear of my life. I thought he was reaching for something, or I thought that object in his hand was a gun and it was a cell phone. Or, he stopped and looked the wrong way. I thought he was going to throw a knife at me. So, that defense has been working for years, and so you add the apprehension of bodily injury. You add the good faith, in terms of, that’s been the law in terms of search and seizures. Now it’s also the law in terms of false arrests and what have you. So, the law has always been in the favor of law enforcement, so this is just one microcosm, one specter of the system, but this just steps in line with what has been historically a pattern.
Not indicting Judge Williams, but he, because he’s been a prosecutor in police brutality cases out of the department of justice, but he’s looking at the law, and the law in itself has evolved for the protection of the police officers.
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